Last spring, I published a short
essay about the relationship between the entry-ban litigation and Korematsuv. United States.I argued
that the shadow of Korematsu—and,
more particularly, the opportunity to repudiate Korematsu—could well be on the Justices’ minds as they confronted
the entry ban.Obviously, the current
case differs from Korematsu in
several ways, and it wouldn’t be legally necessary to repudiate Korematsu in order to strike down the
entry ban.But if a majority of the
Court were inclined to strike down the entry ban, it’s not hard to imagine
someone’s writing an opinion that includes the sentence “Korematsu was wrong the day it was decided.”

I still think that officially repudiating Korematsu is probably an attractive
prospect for most of the Justices.And
that prospect aside, I’m confident that on the merits of the current case, the
entry ban should be struck down as unconstitutional.So if the Supreme Court does the right thing—a
possibility that cannot be precluded—then we might well see overt discussion
and repudiation of Korematsu.

But the deepest lesson of Korematsu is one that ought to make us unsurprised if the Supreme
Court upholds the entry ban orders.

That lesson, of course, is this: the Supreme Court, as an
institution, is perfectly capable of signing off on morally evil executive
branch policies that are ostensibly (but not really) necessary for national
security, even when the legal arguments for the executive branch are weak.The Court, as it existed in the 1940s,
decided Korematsu the way it
did.Three dissenters at the time, and
pretty much the whole legal profession soon thereafter, regarded the decision
as a terrible mistake.But the Court did
what it did.

Given the low regard in which Korematsu is now held, we can be pretty confident that no
foreseeable Supreme Court will uphold an exclusion order (or an internment
order) aimed specifically at American citizens of Japanese descent.But there is little reason to think that an
institution that produced Korematsu
under the conditions of the 1940s could not, mutatis mutandis, make some analogous moral and legal blunder in
the 2010s.We have a case where the
executive branch acts for bigoted reasons, produces a national-security rationale,
and demands deference from the judiciary in view of its supposedly superior
decisionmaking competence.If the order
looked just like the Korematsu order,
the Court probably wouldn’t go for it.Everyone pretty much thinks that would be unconstitutional.But it’s often easier to know that some executive-branch
policy should have been held unconstitutional decades ago, when everyone you
know today thinks that policy was unconstitutional, than it is to recognize
what should be done on a new set of facts in the present.And indeed, if the Court does uphold the
entry ban, it could well point to Korematsu
as justification—not by relying on it, but by distinguishing the case.

Cases from the constitutional past that are widely regarded
as bad mistakes—anti-canonical cases, as I described them
twenty years ago—are sometimes used to create a false sense of security about
decisions in the present.Whatever
unpleasant thing we might tolerate today, we say, is not the same as that bad thing that happened in the
past.De facto segregation is bad—but by
pointing out that it isn’t the same as official Jim Crow segregation, we help
assure ourselves that we’re doing it right.Courts in the age of Jim Crow might have had a parallel thought: the contrast
with slavery could make Jim Crow look tolerable, just as the contrast with Jim
Crow helps make de facto segregation look tolerable today.(Reva
Siegel wrote well about all of this.)To be clear, the fact that there exists some consensus evil in the past
doesn’t prove that the current situation is merely one more evil that should be
overcome: maybe de facto segregation is and should be tolerable,
constitutionally speaking.It’s not an
easy question, at least not to people who confront it in 2018.(What people will think when they look back
from 2118 is something I’m not qualified to predict.)The point I’m making here is simply that
distinguishing a current case from some past evil shouldn’t be enough to
establish that what’s happening now is constitutionally acceptable.It might just be false comfort.

A few months ago, I accepted a Federalist Society invitation
to debate the
constitutionality of the entry ban with another law professor—a defender of the Trump Administration’s executive orders. He offered about as good a legal defense of those orders as I have heard. As part of framing his remarks, my
interlocutor mentioned that the Supreme Court confronted the previous version
of the entry ban last June and, though the Court did not endorse the
President’s policies, it did not reject them, either.(What the
Court did last June was to allow the second version of the entry ban order
to remain partly in place pending a full decision on the merits that everyone
knew would never come, because Executive Order 13780 would become moot before
any such decision was rendered.)Last
June’s ruling by the Supreme Court was of course considerably less condemnatory
of the entry ban than most lower-court decisions on the entry-ban issue had
been.In the Fourth Circuit, for
example, the ban had been diagnosed as the product of anti-Muslim bigotry and
held unconstitutional accordingly.According to my interlocutor that day, the Court’s refusing to do what
the lower courts had done signaled that the lower courts’ view was likely
overheated: the fact that the Court had confronted the entry ban and not felt
the need to take decisive action striking down E.O. 13780 indicated that E.O.
13780 was not a flagrantly unconstitutional instantiation of governmental
bigotry.My colleague summed up the
point by saying that the Court’s apparent tolerance for the entry ban should
tell us that whatever the best view of the issue in the end, this case is not
the next Korematsu.

I know what he meant.But there’s an irony in the characterization, and an instructive
one.The logic of the idea is that if
the entry ban were really the horribly bigoted thing that the Fourth Circuit
thought it was, the Supreme Court would not have tolerated it, because the
Supreme Court can be relied upon to have a sensible view of what is and isn’t
horribly bigoted government conduct.But
to say that the Court’s tolerance for this executive order makes the entry-ban
case different from Korematsu is to forget something
fundamental about Korematsu.It’s this: Korematsu was a case in which the Supreme Court of the United
States upheld an order rooted in
executive-branch racism.What we should
learn from Korematsu is precisely
that the Court is capable of upholding grossly bigoted executive orders,
executive orders so shameful that the name of the case upholding them quickly
becomes a consensus byword for constitutional law at its ugliest.So it makes little sense to say that the
Court’s tolerance for an executive action should reassure us that that action
is unlike the action at issue in Korematsu.It makes at least as much sense to think that
this case will be like Korematsu if
the Court upholds the executive order.After all, what the Court did in Korematsu was uphold a bigoted order
that should have been held unconstitutional.

I hope to read an opinion in this case that contains the
sentence “Korematsu was wrong the day
it was decided.”But if the entry ban
order is upheld, we should not be surprised to read an opinion in which the
Supreme Court justifies its decision in part by noting that this case is not Korematsu.Which of course it isn’t; history rarely
repeats itself that cleanly.But admirable
decisionmaking requires more than condemning the precise thing that everyone
has agreed to condemn for more than half a century.And if the Court pronounces the entry ban constitutional,
we should not make the mistake of thinking that that pronouncement means that
the entry ban is any better in our day, morally or constitutionally, than the
Japanese exclusion order was in the 1940s.The Court upheld that one, too.